Wednesday, 6 November 2013
Expert Testimony on the Subject of Foreign Law
Subjects of expert testimony may include foreign law, science or art, handwriting, finger impressions. Under the category of science or art, it may cover medical professional or other profesion such as engineers and accountants. Under the category of handwriting, it involves expert who will be responsible to determine the genuineness of the disputed handwritings whereas under the category of finger impressions, it involves expert who is responsible on the identification and comparison of finger prints that are in dispute.
I would discuss about the subject of foreign law under this post. There are 2 simple issues that I would like to raise out which are whether the court can take judicial notice of foreign law and what is the manner of proving the foreign law.
For the first issue, the answer is simply in negative. As per Ong J in the case of Sivagami Achi v PRM Ramanathan Chettiar & Anor  MLJ 221, 223: I cannot obviously take judicial notice of Hindu Law on which there is no expert opinion evidence before me, nor have any arguments been addressed to me from the Bar based on authoritative decisions on Hindu law as to rules of intestate succession under the Mitakshara system.
Furthermore, as per Abdoolcader J in Mak Sik Kwong v Minister of Home Affairs, Malaysia (No 2)  2 MLJ 175: Mr Mohideen thereupon submits that there was no evidence that these matters were or are in fact rights accorded exclusively to citizens of China and suggests that I should take judicial notice of the law of China, but when I evinced horror at the suggestion and referred him to the provisions of section 45 of the Evidence Act 1950, he resiled and promptly applied for an adjournment…
Nevertheless, section 57(1)(b) of Evidence Act 1950 provides that the court shall take judicial notice of all public Acts passed by the Parliament of UK and all local and personal Acts directed by it to be judicially noticed. But, section 57(3) also provides that the court may refuse to do so unless and until the person who calls upon the court to take judicial notice of a foreign law produces any such book or document as it considers necessary to enable it to do so.
However, for all cases that are not covered under section 57, the foreign law relied must be proved as a fact.
As regards to the second issue, Abdoolcader J in Mak Sik Kwong v Minister of Home Affairs, Malaysia (No 2)  2 MLJ 175, 180 held that foreign law on a particular topic is a question of fact. An opinion upon a point of foreign law can be proved by evidence of experts (section 45) and in this connection, statements as to any law of any foreign country contained in law bokks, printed or published under the authority of the government of that foreign country, are relevant as provided under section 38 of Evidence Act 1950.
It is also clear that the expert on foreign law cannot assume the power of decision. This was held by GP Selvam J in The H156  3 slr 756, 764 that the function of an expert on foreign law is to submit the proposition of foreign law as fact for the consideration of the court. The court will make its own findings of what the foreign law is. Even though the expert may submit his conclusions, he must present the materials and the grounds he uses to make his conclusions. The expert may not usurp the function of the court and present his finding. Further, he cannot decide the issue by applying the law to the facts without setting out the law and reasoning process.